Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd & Minister for Mineral Resources - EDO NSW

Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd & Minister for Mineral Resources

EDO NSW, on behlaf of Caroona Coal Action Group Inc, took proceedings in the Land and Environment Court challenging the exploration licence and coal authorisation granted to Coal Mines Australia Pty Ltd by the Minister for Mineral Resources.

In the proceedings, Caroona Coal Action Group Inc argued that the licence was invalid on three (3) grounds. The first ground was that the licence, which was transferred from the Director-General of the Department of Mineral Resources to Coal Mines Australia Pty Ltd, was not validly renewed in the past, such that there was no valid licence in place to transfer. The second ground was that the procedure, as per the Mining Act, was not followed by the Minister when the licence was transferred to Coal Mines Australia Pty Ltd, because the Minister purported to grant a new licence, rather than transfer an existing one. Finally, the Caroona Coal Action Group Inc argued that the Minister exceeded his power when granting the licence to Coal Mines Australia Pty Ltd because it was granted for a period exceeding 5 years, the maximum term for an exploration licence allowed by the Mining Act.

The Court rejected all 3 grounds. The Court found that the first ground was not established by the applicant, finding that the documentary evidence did not show that the Mining Act was not complied with when the license was renewed prior to its partial transfer to Coal Mines Australia. In relation to the second ground the Court found that the legislative requirements for a licence transfer were met. The third ground, although established, was not significant enough to render the grant of the licence void.

Caroona Coal Action Group Inc appealed the decision of his Honour Justice Preston on two grounds. Firstly, that the Minister for Mineral Resources did not satisfy himself that special circumstances existed to justify the renewal of the licence over an area larger than half of the land area as required by s 114(6) of the Mining Act 1992; Secondly, that the Minister and Coal Mines Australia were required by s 160 of the Mining Act 1992 to sign a document comprising an 'instrument of transfer', but failed to do so.

The Court of Appeal rejected both grounds of appeal. With respect to the first ground, the court concluded that Preston CJ had not made an error of law in concluding that Caroona Coal Action Group had not discharged the onus of establishing on the balance of probabilities that the Minister did not form the relevant mental state of satisfaction that special circumstances existed. With respect to the second ground, the court held that the transfer of an exploration licence under Part 7 of the Mining Act 1992 does not require a "transfer document", rather the agreement of the parties to the transfer is signified by the application made by the licence holder and the consent of the proposed transferee.

Many thanks to Bruce McClintock and Jackie Gleeson, who appeared as counsel for Caroona Coal Action Group Inc in both proceedings.

In a related judgment, Preston CJ ordered CCAG to pay the costs of both respondents (Coal Mines Australia and the Minister for Mineral Resources) including the costs of the application for costs.

In his judgment Preston CJ stressed the need for a "principled exercise of the costs discretion" and has introduced a new 3-step approach to awarding costs in public interest litigation.

In further related proceedings, Caroona Coal Action Group argued that the public interest in the principle of open justice should defeat the confidentiality orders sought by Coal Mines Australia Pty Limited to restrict public access to its Expression of Interest (EOI) in the Caroona mining exploration license. Preston CJ rejected Caroona Coal Action Group's arguments; finding that particular statements and data in the EOI were confidential. Preston CJ held that confidentiality orders should be made which would continue to restrict access to the whole EOI solely to Caroona Coal Action Group's legal advisors; a Redacted EOI be produced and filed which would allow public access to the EOI without the confidential material; and that these orders would not offend the principle of open justice.

Notice of Appeal

Judgment - Order on costs

Judgment  Appeal